THE  '* GREAT  WAR"  AND  INTER 
NATIONAL  LAW 


BY 

ELIHU  ROOT 


JiEPRJJMTED  FROM 

ADVOCATE  OF  PEACE 

JUNE,  1921 


AMERICAN  PEACE  SOCIETY 

FOUNDED  1828 

613-14  COLORADO  BUILDING 

WASHINGTON.  D.  C. 

1921 


.1  •    •  •!  I 


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:>  >,     >    ',  >    3 


THE  "GREAT  WAR"  AND  INTERNA- 
TIONAL LAW 

By  ELIHU  ROOT 

Presidential  Address  at  the  Fifteenth  Annual  Meeting  of 

the  American  Society  of  International 

Law,  April  27,  1921 

THE  American  Society  of  International  Laav 
may  appropriately  renew  its  discussions  of  the  sub- 
ject to  which  it  is  devoted,  by  a  review  of  the  effects  of 
the  Great  War,  both  as  to  the  law  itself  and  as  to  the 
international  relations  under  which  the  law  is  to  be 
applied. 

It  is  obvious  that  we  cannot  go  on  assuming  that  the 
laws  and  customs  of  war  on  land  and  at  sea,  the  rules 
which  regulate  the  rights  and  duties  of  neutral  powers 
and  persons  in  case  of  war,  retain  the  authority  which 
we  supposed  them  to  possess  in  the  month  of  July,  1914. 
These  rules  imposed  their  obligation  upon  all  parties  to 
the  great  conflict,  and,  when  violated  by  one  party,  they 
could  not  reasonably  be  deemed  to  restrain  the  other 
belligerents.  So,  the  w^orld  went  on  for  several  years 
without  much  reference  to  them;  and  the  question  now 
is :  How  far  do  they  exist  ?  In  many  ways  the  con- 
ditions which  gave  rise  to  these  rules  have  been  ma- 
terially changed.  The  new  modes  of  conducting  war 
under  which  practically  entire  peoples  are  mobilized 
either  for  combat  or  supply  have  apparently  destroyed 
the  distinction  between  enemy  forces  and  non-combatant 
citizens,  so  that  the  differences  which  underly  the  law  of 
contraband  disappear.  The  whole  people  would  seem 
to  be  an  enemy  force,  and  all  goods  destined  for  their 
use  would  appear  to  be  contraband.  The  historic 
declaration  of  Paris  that  "the  neutral  flag  covers  enemy 
goods  with  the  exception  of  contraband  of  war'^  and 
that  "neutral  goods  with  the  exception  of  contraband 
of  war  are  not  liable  to  capture  under  the  enemy's 
flag"  would  seem  to  have  been  swallowed  by  the  excep- 
tion, and  the  doctrine  that  "free  ships  make  free  goods'' 


491236 


and  that  "blockades  in  order  to  be  binding  must  be 
effective"  appear  to  have  become  idle  phrases.  The 
submarine,  the  Zeppelin  and  the  airplane,  wireless 
telegraphy,  the  newly  achieved  destructive  power  of 
high  explosives  and  of  poisonous  gases  have  created  con- 
ditions affecting  both  belligerents  and  neutrals  not  con- 
templated when  the  old  rules  were  established,  and  in 
many  respects  the  old  rules  are  not  adapted  to  deal  with 
the  new  conditions. 

The  Doctrine  of  Kriegs  Raison 

More  important  still  is  a  fact  which  threatens  the 
foundation  of  all  international  law.  The  doctrine  of 
kriegs  raison  has  not  been  destroyed.  It  was  asserted 
by  Bethman  Hollweg  at  the  beginning  of  the  war 
when  he  sought  to  justify  the  plain  and  acknowl- 
edged violation  of  international  law  in  the  invasion  of 
Belgium  upon  the  ground  of  military  necessity.  The 
doctrine  practically  is  that  if  a  belligerent  deems  it 
necessary  for  the  success  of  its  military  operations  to 
violate  a  rule  of  international  law,  the  violation  is  per- 
missible. As  the  belligerent  is  to  be  the  sole  judge  of 
the  necessity,  the  doctrine  really  is  that  a  belligerent 
may  violate  the  law  or  repudiate  it  or  ignore  it  whenever 
that  is  deemed  to  be  for  its  military  advantage.  The 
alleged  necessity  in  the  case  of  the  German  invasion  of 
Belgium  was  simply  that  Belgium  was  deemed  to  be 
the  most  advantageous  avenue  through  which  to  attack 
France.  Of  course,  if  that  doctrine  is  to  be  maintained, 
there  is  no  more  international  law,  for  the  doctrine  can- 
not be  confined  to  the  laws  specifically  relating  to  war 
on  land  and  sea.  With  a  nation  at  liberty  to  declare 
war,  there  are  few  rules  of  peaceful  intercourse,  the 
violation  of  which-  may  not  be  alleged  to  have  some 
possible  bearing  upon  a  military  advantage,  and  a  law 
which  may  rightfully  be  set  aside  by  those  whom  it  is 
intended  to  restrain  is  no  law  at  all. 

The  doctrine  has  not  been  abandoned.  It  was  for- 
mally and  authoritatively  declared  by  the  German  Gov- 
ernment and  acted  upon  throughout  the  war.  We  can 
find  no  ground  to  justify  the  conclusion  that  a  plainly 
unrepentant  Germany  does  not  still  maintain  the  sound- 


ness  of  the  doctrine  as  a  part  of  its  historic  justification, 
nor  has  there  been  any  renunciation  by  the  allies  of 
Germany.  We  must,  therefore,  face  the  fact  that  the 
law  which  during  the  course  of  three  centuries  had 
become  apparently  firmly  established  upon  the  universal 
acceptance  and  consent  of  all  the  members  of  the  com- 
munity of  civilized  nations  is  shaken  to  its  foundation 
by  the  repudiation  of  its  moral  obligation  on  the  part 
of  the  four  central  powers — Germany,  Austria-Hungary, 
Turkey,  and  Bulgaria,  which  at  the  outbreak  of  the  war 
had  over  144,000,000  of  inhabitants. 

Few  more  futile  public  performances  can  be  found  in 
the  history  of  international  intercourse  than  the  long 
diplomatic  discussions  which  accompanied  the  earlier 
years  of  the  war  between  neutral  nations  and  Germany, 
about  the  rules  of  international  law  and  their  applica- 
tion to  the  conduct  of  Germany's  military  and  naval 
proceedings,  while  Germany  had  already  publicly  de- 
clared that  she  would  not  deem  herself  bound  by  any 
rules  she  found  to  be  disadvantageous  to  herself.  The 
same  will  be  true  in  the  future  if  the  same  condition 
exists.  It  will  be  impossible  to  maintain  the  restraint 
upon  national  conduct  afforded  by  the  rules  of  inter- 
national law  so  long  as  so  great  a  part  of  the  civil- 
ized world  asserts  the  right  to  disregard  those  rules 
whenever  it  sees  fit.  Either  the  doctrine  of  kriegs  raison 
must  be  abandoned  definitely  and  finally,  or  there  is  an 
end  of  international  law,  and  in  its  place  will  be  left  a 
world  without  law,  in  which  alliances  of  some  nations 
to  the  extent  of  their  power  enforce  their  ideas  of  suit- 
able conduct  upon  other  nations. 

"Internationalism"  a  Peril 

Another  threatening  obstacle  to  international  law 
exists  in  the  rapid  development  of  internationalism. 
This  is  presented  by  the  avowed  purposes  of  the  Third 
Internationale  aiming  at  the  destruction  of  national 
governments  and  the  universal  empire  of  the  pro- 
letariat ;  by  the  fact  that  the  brutal  and  cruel  despotism 
of  Lenin  and  his  associated  group  has  been  able  to 
maintain  its  ascendency  over  the  vast  territory  and 
population  of  Russia,  calling  itself  a  dictatorship  of  the 


proletariat  but  making  itself  a  dictatorship  over  the 
proletariat  as  well  as  all  other  classes,  and  ruling  in 
the  name  of  a  world  revolution  for  the  accomplishment 
of  the  purposes  of  the  Third  Internationale.  It  is  pre- 
sented also  by  the  universal  propaganda  carried  on  with 
almost  religious  fervor  in  all  countries  and  seriously 
affecting  the  leadership  of  labor  in  many  countries. 
That  propaganda,  exceedingly  subtle  and  ingenious, 
throughout  the  world  has  toppled  over  the  wits  of 
parlor  Socialists  from  their  insecure  foundations  of 
education  superior  to  their  intelligence,  and  is  making 
them  the  unconscious  agents  of  promoting  political 
principles  which  they  would  abhor  if  they  understood 
them,  and  in  aiding  sinister  projects  for  profit  in  which 
they  personally  have  no  part.  The  organization  of  the 
civilized  world  in  nations  is  confronted  since  the  war 
with  a  vigorous  and  to  some  degree  prevailing  assertion 
that  a  much  better  organization  would  be  that  of  gov- 
ernment by  class  existing  in  all  nations  and  superior 
to  all. 

International  law,  of  course,  is  based  upon  the  ex- 
istence of  nations.  There  is  no  common  ground  upon 
which  one  can  discuss  the  obligations  of  international 
law  with  the  Third  Internationale,  and  just  so  far  as 
the  ideas  of  Lenin  and  Trotsky  influence  the  people  of 
a  civilized  country  just  so  far  the  government  of  that 
country  is  weakened  in  the  performance  of  its  inter- 
national obligations. 

The  existence  of  nations  is  not  an  accident  of  locality 
or  of  language  or  of  race.  It  is  one  phase  of  the  strug- 
gle of  mankind  for  liberty.  The  independence  of 
nations  is  an  assertion  of  the  rights  of  different  groups 
of  men  having  in  the  main  different  customs,  traditions, 
habits  of  thought  and  action,  ideas  of  propriety  and  of 
right,  to  have  local  self-government.  This  is  true  what- 
ever the  form  of  government;  whether  it  be  a  monarchy 
or  an  aristocracy  permitted  by  the  people  of  the  coun- 
try or  a  republic  in  which  rulers  are  elected  by  the 
people,  the  distinction  is  the  same  between  government 
in  accordance  with  the  people's  own  conceptions  of  right 
and  propriety  and  government  by  an  alien  force  hav- 
ing different  and  incongruous  conceptions.     There  are 


few  more  injurious  influences  in  international  affairs 
than  the  inability  of  the  people  of  one  country  to  under- 
stand or  to  realize  the  differences  between  themselves 
and  the  people  of  other  countries  in  fundamental  and 
often  unexpressed  preconceptions.  These  differences 
affect  the  understanding  in  the  different  countries  of 
every  act  done  and  every  word  used.  They  are  not 
matters  of  reason  to  be  solved  intellectually  like  a  prob- 
lem of  Euclid.  They  are  the  results  of  long  ages  of 
tradition,  modes  and  habits  of  thought,  inherited  as- 
sumptions regarding  the  conduct  of  life.  One  race  of 
men  take  off  their  shoes  and  keep  on  their  hats,  another 
race  take  off  their  hats  and  keep  on  their  shoes  under 
similar  conditions  to  express  similar  sentiments  of 
respect.  To  the  people  of  one  country  polyandry  is  the 
natural  social  organization,  to  the  people  of  another 
polygamy,  and  to  the  people  of  others  monogamy  is 
natural  and  appropriate.  The  people  of  some  countries 
consider  that  justice  is  best  attained  by  applying  a 
system  of  excluding  evidence  according  to  rigid  rules 
of  relevancy  and  competency,  while  the  people  of  other 
equally  civilized  countries  consider  that  the  same  result 
may  be  best  attained  by  admitting  in  evidence  anything 
that  anybody  chooses  to  say  on  the  subject.  None  of 
these  differences  is  the  result  of  the  working  out  of 
problems  by  pure  reason.  They  come  from  the  fact  that 
peoples  of  different  countries  and  of  different  races 
do  not  think  alike,  and  cannot  think  alike  because  their 
intellectual  processes  are  the  resultants  of  different 
traditional  conceptions  combined  with  the  apparent 
logical  premises  of  each  problem. 

The  most  grinding,  possible  tyranny  is  to  be  found 
in  the  intimate  control  of  a  people  by  other  races  or 
rulers  who  do  not  understand  the  people  whom  they 
rule.  The  vice  of  tyranny  is  so  widespread,  the  tend- 
ency to  tyrannize  over  others  is  so  universal,  especially 
among  those  who  think  themselves  better  than  others, 
that  only  the  highest  intelligence  creates  exceptions  to 
the  rule  of  oppression  in  alien  control.  The  declaration 
of  the  independence  of  nations,  large  and  small,  is  an 
assertion  of  the  right  to  be  free  from  the  oppression  of 
alien  control.  Internationalism  would  fasten  that  op- 
pression upon  the  world  without  recourse. 


8 

The  fundamental  ideas  of  international  law  are,  first, 
that  each  nation  has  a  right  to  live  according  to  its  own 
conceptions  of  life;  second,  that  each  national  right  is 
subject  to  the  equal  identical"  right  of  every  other 
nation. 

International  law  is  the  application  of  these  prin- 
ciples through  accepted  rules  of  national  action  adapted 
to  govern  the  conduct  of  nations  toward  each  other  in 
the  contacts  of  modern  civilization.  Internationalism, 
by  destroying  the  authority  and  responsibility  of  nations 
and  the  law  which  is  designed  to  control  their  conduct 
toward  each  other,  would  destroy  the  most  necessary 
bulwark  of  human  liberty,  the  chief  protection  of  the 
weak  against  the  physical  force  of  the  strong,  and  sub- 
stitute the  universal  control  which  the  nature  of  men 
will  make  an  inevitable  tyranny. 

The  long,  slow  process  of  civilization  with  its  peaceful 
attrition  between  individuals  and  between  local  and 
tribal  groups  tends  toward  the  steady  enlargement  of 
nations  through  the  reconciliation  of  ideas  and  the 
adoption  of  common  standards,  making  it  easy  for  dif- 
ferent groups  to  live  together  under  the  same  govern- 
ment. Every  great  country  shows  the  results  of  this 
process.  Burgundy,  Provence  and  Brittany,  Wessex, 
Sussex,  and  Northumbria,  Wales,  England  and  Scot- 
land, Piedmont  and  Naples  have  come  to  live  peaceably 
together  under  governments  in  which  each  has  a  voice 
and  in  which  each  is  understood.  But  that  process 
cannot  be  forced  any  more  than  the  growth  of  a  tree  can 
be  forced.  It  can  be  promoted  as  the  growth  of  a  tree 
can  be  promoted.  The  parliament  of  man  may  come 
just  as  the  parliaments  of  Britain  and  France  and  Italy 
have  come,  but  it  must  be  by  growth  and  not  by  force 
nor  by  the  false  pretence  of  agreement  where  there  is 
no  real  agreement,  nor  by  international  majorities  over- 
bearing minority  nations  through  majority  votes. 

The  great  force  of  Eussia  which  aims  to  impose 
internationalism  upon  the  world,  therefore,  halts  the 
development  of  international  law,  the  very  foundations 
of  which  the  existing  government  of  Russia  now  repu- 
diates. As  the  basis  of  international  law  is  universal 
acceptance,  either  Russia  must  be  excluded  from  the 
category  of  civilized  nations  or  the  law  must  wait  upon 


the  downfall  of  the  present  regime  in  Eussia.  In  the 
meantime,  every  act  which  tends  to  support  that  regime, 
whether  for  sentiment  or  for  trade,  is  a  hindrance  to 
the  restoration  of  law  and  the  rule  of  international 
justice. 

The  Versailles  Treaty 

Under  these  circumstances,  how  are  we  to  take  up 
the  task  of  promoting  the  development  of  the  law  of 
nations  ? 

The  task  cannot  be  abandoned.  The  process  which 
owes  its  impulse  toward  systematic  development  to 
Grotius  and  the  horrors  of  the  Thirty  Years'  War  can- 
not be  abandoned.  Xever  before  was  the  need  so  great. 
The  multitudes  of  citizens  who  now  control  the  na- 
tional governments  of  modern  democracies  and  direct 
international  policies  cannot  safely  follow  the  passion 
of  the  moment  or  the  idiosyncracy  of  the  individual 
public  officer  in  their  international  affairs,  without  ac- 
cepted principles  and  rules  of  action,  without  declared 
standards  of  conduct,  without  definition  of  rights, 
without  prescription  of  duties  too  clear  to  be  ignored. 
Otherwise  the  world  reverts  to  chaos  and  savagery. 

To  determine  how  this  Society  and  its  members  may 
be  effective  in  efforts  to  promote  the  development  and 
authority  of  international  law,  some  further  examina- 
tion of  the  existing  international  situation  will  be 
useful. 

The  armistice  of  November  11,  1918,  left  for  the  suc- 
cessful allied  powers  two  quite  distinct  and  in  some 
respects  incongruous  tasks. 

The  first  task  was  to  decide  upon  the  terms  of  peace 
and  to  require  compliance  with  those  terms. 

That  was  a  matter  of  power,  of  force.  It  was  the  im- 
position of  the  will  of  the  conquerors  upon  the  con- 
quered. Only  the  belligerent  nations  were  concerned  in 
it.  It  was  a  part  of  the  war.  Disarmament,  reparation, 
disposition  of  conquered  colonies,  transfers  of  territory, 
were  to  be  dictated  as  alternatives  to  further  military 
punishment  by  the  successful  armies  and  navies.  It 
was  to  be  affected  by  the  principles  of  reward  for  assist- 
ance in  winning  the  war,  of  penalty  for  offenses  against 


10 

civilization  in  beginning  and  carrying  on  the  war  and 
by  treaties  between  the  belligerents. 

The  second  task  in  necessary  sequence  was  to  give 
effect  to  the  universal  desire  of  the  civilized  world  by 
bringing  all  civilized  nations  into  agreement  for  the 
future  preservation  of  peace. 

That  was  a  matter,  not  of  force,  but  of  reason, 
humanity,  universal  instinct  of  self-preservation.  It 
must  be  voluntary,  not  compulsory.  It  was  the  concern 
of  all  neutral  nations  equally  with  all  belligerent  na- 
tions. It  presupposed  a  world  at  peace  in  which  peace, 
already  attained,  was  to  be  preserved.  It  was  to  follow, 
not  to  be  a  part  of,  the  compulsions  of  conquest. 

The  Versailles  Conference  undertook  to  include  both 
of  these  separate,  distinct  and  incongruous  processes  in 
the  same  treaty.  They  framed  a  League  of  Nations  for 
the  future,  they  invited  all  neutrals  to  join  and  at  the 
same  time  and  in  the  same  instrument  they  undertook 
to  impose  penalties  to  which  they  required  the  defeated 
belligerents  to  submit. 

The  defeated  belligerents  were  not  admitted  to  the 
League  and  had  nothing  to  say  about  it,  while  the 
neutral  members  of  the  League  naturally  had  no  right 
or  authority  respecting  the  terms  of  peace  imposed  by 
the  treaty. 

The  two  processes  were  tied  together,  however,  by 
provisions  making  the  League  of  Nations  the  agent  of 
the  conquerors  to  see  to  the  execution  of  the  terms  im- 
posed upon  the  other  defeated  nations.  Thus  certain 
powers  were  vested  in  the  League  including  neutrals, 
regarding  the  administration  of  occupied  territory, 
plebiscites,  scrutiny  of  government  under  mandates. 
These  functions  plainly. were  to  be  in  exercise  of  deriva- 
tive not  original  authority  of  the  League,  which  became 
a  mere  agent  of  the  belligerents  for  those  purposes. 
Spain,  Holland,  Norway,  for  example,  and  any  organi- 
zation which  represents  them  can  have  no  authority 
regarding  a  plebiscite  in  Silesia  or  the  government  of 
Danzig,  except  within  the  limits  of  a  specific  agency 
created  by  the  nations  which  had  a  right  won  by  con- 
quest or  created  by  treaty  between  such  nations  and 
Germany. 


11 

Another  peculiarity  of  the  treaty  was  that,  although 
it  contemplated  the  particination  of  all  the  belligerents, 
it  was  expressly  made  separable,  by  the  provision  that 
it  should  take  effect  when  ratified  by  any  three  of  the 
principal  powers. 

Accordingly,  when  the  other  principal  powers  ratified 
the  treaty  and  the  United  States  refused  to  do  so,  the 
terms  of  peace  became  binding  between  Germany  and 
the  ratifying  powers,  although  not  between  Germany 
and  the  United  States.  And  the  League  of  Nations, 
no  longer  a  mere  project,  came  into  being  and  still 
exists,  uniting  for  specified  purposes  substantially  all 
the  civilized  countries  except  the  United  States,  Ger- 
many, Eussia,  Austria-Hungary,  and  Turkey. 

The  natural  tendency  of  these  arrangements  and  the 
discussion  and  controversy  which  they  engendered  was 
towards  great  delay  and  confusion. 

The  imposition  of  terms  of  peace  was  a  matter  calling 
for  prompt  decision  and  compliance  while  the  conquer- 
ing armies  were  in  being  and  able  to  compel  compliance. 
Under  the  distractions  and  discussions  incident  to  the 
formation  of  a  League  for  future  peace,  this  vital  process 
of  closing  the  war  dragged  along  until  the  Western 
armies  had  mainly  disappeared ;  and  many  of  the  issues 
of  the  war  have  passed  into  a  new  and  prolonged  stage 
of  discussion. 

In  the  meantime,  the  Supreme  Council  of  the  bellig- 
erents, in  which  the  United  States  continued  entitled 
to  a  place  which  she  ceased  to  fill,  has  held  the  center  of 
the  international  stage  trying  to  bring  about  the  state 
of  peace  which  the  League  of  Nations  was  formed  to 
preserve,  and  at  the  same  time  the  League  has  been 
struggling  with  its  special  agency  under  the  treaty 
without  ever  having  been  put  by  its  principals  in  the 
position  of  recognized  authority;  and  the  organization 
for  future  peace  has  remained  incomplete  in  the  face  of 
continual  actual  war  involving  a  majority  of  the  people 
of  Europe  and  the  Near  East. 

In  considering  our  course  as  students,  lawyers,  Amer- 
ican citizens,  united  by  common  interest  in  the  law  of 
nations,  I  think  we  must  assume  that  the  conditions 
which  I  have  described  are  temporary;  that  before  very 


12 

long  the  immediate  issues  of  the  war  will  be  settled  for 
the  time  being  and  peace  will  be  restored ;  that  republi- 
can Germany  and  her  associates  will  abandon  the 
arrogant  assertion  of  the  kriegs  raison;  that  the  brutal 
and  cruel  despotism  which  now  oppresses  the  people  of 
Russia  will  meet  the  fate  which  awaits  the  violation  of 
economic  laws  and,  failing  to  be  rescued  by  those  friends 
who  are  coming  to  its  assistance  in  this  and  other  coun- 
tries, will  fall,  and  the  people  of  Russia  will  come  to 
their  own. 

Rectifying  Treaty  Errors 

When  these  results  have  been  reached,  there  will  re- 
main the  hindrances  of  different  forms  and  methods 
favored  by  the  nations  within  and  the  nations  without 
the  existing  League.  But  the  idea  that  by  agreeing  at 
this  time  to  a  formula  the  nations  can  forever  after  be 
united  in  preventing  war  by  making  war  seems  practi- 
cally to  have  been  abandoned ;  and  the  remaining  differ- 
ences are  not  of  substance  and  ought  not  to  prevent  the 
general  desire  of  the  civilized  world  from  giving 
permanent  form  to  institutions  to  prevent  further  war. 
In  the  long  run,  from  the  standpoint  of  the  inter- 
national lawyer,  it  does  not  much  matter  whether  the 
substance  of  such  institutions  is  reached  by  amending 
an  existing  agreement  or  by  making  a  new  agreement. 

The  necessary  things  are  that  there  shall  be  institu- 
tions adapted  to  make  effective  the  general  civilized 
public  opinion  in  favor  of  peace,  and  that  these  institu- 
tions shall  be  developed  naturally  from  the  customs,  the 
habits  of  thought  and  action,  and  the  standards  of 
conduct  in  which  civilized  nations  agree,  and  that  they 
shall  be  of  such  a  nature  that  the  habit  of  recourse  to 
them  will  have  an  educational  effect  and  be  a  means  of 
growth  in  justice  and  humanity. 

The  covenant  of  the  League,  under  which  so  many 
nations  are  now  included,  commits  its  members  fully  to 
these  fundamentals,  and,  while  it  undertakes  to  go  far- 
ther and  do  too  much,  the  evident  tendency  of  its 
members  is  to  reduce  this  excess  by  interpretatioM  and 
amendment  and  bring  it  down  to  the  character  of  real 


13 

representation  of  the  common  customs  and  common 
opinions  of  civilized  peoples  in  favor  of  peace. 

On  the  other  hand,  the  United  States  is  certain  to  be 
ready  to  join  in  some  form,  in  seeking  the  same  result 
by  these  same  essential  methods. 

That  will  follow  necessarily  from  the  traditional 
policy  of  our  country  and  the  responsible  declarations  of 
our  government  in  both  the  legislative  and  the  executive 
branches. 

Considering  this  field  of  preventive  provisions  as  sepa- 
rate and  distinct  from  the  temporary  exigencies  of  com- 
pulsory war  settlements,  if  we  examine  both  the  League 
agreement  and  the  declared  policy  of  the  United  States, 
for  information  as  to  common  purposes,  we  shall  find 
several  different  kinds  of  united  action  upon  which  there 
is  practically  agreement  in  principle,  with  difference 
only  in  degree  or  as  to  specific  means. 

We  may  pass  over,  as  least  important,  although  ex- 
tremely useful,  provisions  for  international  co-operation 
in  administrative  services  to  facilitate  trade  and  inter- 
course, or  to  apply  regulations  by  common  consent  in 
matters  of  common  interest.  The  International  Postal 
Union,  the  control  of  wireless  telegraphy,  the  ice  patrol 
of  the  North  Atlantic  for  the  safety  of  the  ships  of  all 
nations,  are  examples  of  this  kind  of  co-operation.  The 
labor  provisions  of  the  Treaty  Of  Versailles  come  under 
the  same  head,  although  they  were  put  into  the  treaty 
without  the  discussion  and  consideration  necessary  to 
ascertain  whether  they  ought  to  be  adopted  or  whether 
they  met  a  general  demand  or  were  adapted  to  world 
conditions.  Much  of  the  time  of  the  League  organiza- 
tion has  been  devoted  to  matters  of  this  character,  which 
are  really  local,  affecting  particular  groups  of  countries 
and  which  would  be  arranged,  naturally  and  probably 
better,  between  the  countries  concerned,  without  burden- 
ing or  involving  the  countries  not  concerned. 

Resort  to  Conferences 

Most  important  for  dealing  with  immediate  danger 
to  international  peace  is  a  system  of  international  con- 
ferences upon  questions  of  international  policy.     This  is 


14 

a  natural  growth  from  experience.  The  Algeciras  Con- 
ference is  a -type.  The  Conference  in  London,  which 
limited  the  effect  of  the  Balkan  wars,  is  another.  It  is 
a  general  belief  that  if  Sir  Edward  Grey  had  secured  the 
conference  he  sought  in  July,  1914,  the  war  would  have 
been  averted.  Whether  it  be  by  dispelling  misunder- 
standings, allaying  fears,  soothing  irritation,  or  by  the 
repressive  effect  of  general  adverse  opinion,  a  formal 
general  conference  of  the  principal  nations  ordinarily 
leads  to  a  situation  in  which  it  is  extremely  difficult  for 
any  nation  to  begin  war. 

The  weakness  of  the  practice  hitherto  has  been  in  the 
fact  that  no  one  had  a  right  to  insist  upon  a  conference ; 
no  one  was  under  obligation  to  attend  a  conference.  The 
step  in  advance  plainly  indicated  as  the  natural  devel- 
opment of  this  most  useful  practice,  into  a  systematic 
institution,  is  to  establish  an  administrative  agency 
whose  duty  it  shall  be  to  call  such  a  conference  in  time 
of  threatened  danger  on  suitable  request,  and  to  place 
all  nations  under  obligation  to  attend  the  conference 
when  called.  Upon  the  substance  of  this,  there  is  no 
disagreement.  The  Council  of  the  League  does  this  and 
something  more,  and  the  difference  is  over  the  something 
more.  The  Council  of  the  League  is  a  perpetual,  per- 
manent conference,  as  distinguished  from  conferences 
ad  hoc,  to  be  called  automatically  whenever  grave  cause 
arises.  No  one  seems  to  question  that  in  one  way  or  an- 
other there  should  be  obligatory  conferences. 

Such  conferences,  however,  deal  with  policy  in  par- 
ticular exigencies,  and  they  proceed  upon  motives  of 
expediency.  They  are  not  steps  in  the  development  of 
the  rule  of  right  among  nations. 

In  that  direction,  also,  however,  we  find  elements  of 
general  agreement. 

The  Permanent  Court  of  Justice 

The  covenant  of  the  League  of  Nations  in  its  pre- 
amble states  one  of  its  objects  to  be  "in  order  to  promote 
international  co-operation  and  to  achieve  international 
peace  and  security  ...  by  the  firm  establishment  of 
the  understandings  of  international  law,  as  the  actual 


15 

rule  of  conduct  among  governments";  and  in  the  14th 
article  it  provides:  "The  Council  shall  formulate  and 
submit  to  the  members  of  the  League  for  adoption  plans 
for  the  establishment  of  a  permanent  court  of  interna- 
tional justice." 

The  American  Congress  in  a  statute  enacted  August 
29,  1916,  expressed  the  American  view  in  the  most 
solemn  form.  The  statute  says:  "It  is  hereby  declared 
to  be  the  policy  of  the  United  States  to  adjust  and  settle 
its  international  disputes  through  mediation  or  arbitra- 
tion, to  the  end  that,  war  may  be  honorably  avoided. 
.  .  .  In  view  of  the  premises,  the  President  is  author- 
ized and  requested  to  invite,  at  an  appropriate  time,  not 
later  than  the  close  of  the  war  in  Europe,  all  the  great 
governments  of  the  world  to  send  representatives  to  a 
conference  which  shall  be  charged  with  the  duty  of  for- 
mulating a  plan  for  a  court  of  arbitration  or  other 
tribunal,  to  which  disputed  questions  between  nations 
shall  be  referred  for  adjudication  and  peaceful  settle- 
ment." 

The  latest  message  of  the  President  of  the  United 
States  to  Congress  on  the  12th  of  the  present  month, 
said: 

"The  American  aspiration,  indeed  tlie  world  aspiration, 
was  an  association  of  nations  based  upon  tlie  application  of 
justice  and  right,  binding  us  in  conference  and  co-operation 
for  the  prevention  of  war  and  pointing  the  way  to  a  higher 
civilization  and  international  fraternity  in  which  all  the 
world  might  share.  ...  In  the  national  referendum  to 
which  I  have  adverted,  we  pledged  our  efforts  toward  such 
an  association,  and  the  pledge  will  be  faithfully  kept." 

The  pledge  to  which  the  President  plainly  referred  in 
the  paragraph  just  quoted,  was  contained  in  the  Eepub- 
lican  platform,  in  these  words : 

"The  Republican  Party  stands  for  agreement  among  the 
nations  to  preserve  the  peace  of  the  world.  We  believe  that 
such  an  international  association  must  be  based  upon  inter- 
national justice,  and  must  provide  methods  which  shall 
maintain  the  rule  of  public  right  by  the  development  of  law 
and  the  decision  of  impartial  courts,  and  which  shall  secure 


16 

instant  and  general  international  conference  whenever  peace 
shall  be  threatened  by  political  action,  so  that  the  nations 
pledged  to  do  and  insist  upon  what  is  just  and  fair  may 
exercise  their  influence  and  power  for  the  prevention  of 
war." 

While  this  pledge  was  in  the  platform  of  one  party, 
it  was  not,  in  fact,  the  subject  of  party  controversy,  and 
the  enormous  majority  of  over  seven  million  votes  given 
to  the  candidate  standing  by  that  platform  justifies  the 
assertion  that  these  words  state  the  true  attitude  of  the 
American  people,  as  that  attitude  is  now  certified  in  the 
passage  which  I  have  quoted  from  the  President's  mes- 
sage to  Congress. 

It  is  apparent  that  the  attitude  of  the  League,  and  the 
attitude  of  America  toward  this  subject  do  not  differ  in 
substance,  however  much  they  may  differ  as  to  the  spe- 
cific modes  of  effectuating  the  common  purpose. 

The  duty  imposed  upon  the  Council  of  the  League, 
"to  formulate  and  submit  plans  for  the  establishment 
of  a  permanent  court  of  international  justice,"  has  been 
performed,  and  a  convention  establishing  such  a  court 
has  been  adopted  by  the  League  and  has  already  been 
ratified  by  many  of  its  members.  It  provides  for  a  per- 
manent court  of  judges  elected  for  fixed  periods,  paid 
fixed  salaries,  engaging  in  no  other  occupation,  and 
bound  to  proceed  under  an  oath  which  imposes  upon 
them  judicial  obligation  as  distinguished  from  a  sense 
of  diplomatic  obligation.  To  this  court  all  nations  may 
repair  for  the  adjudication  of  their  differences. 

So  much  for  the  nations  in  the  League.  It  is  also 
true  that  this  court  is  in  substance,  in  everything  essen- 
tial to  its  character  and  function,  the  same  court  which 
under  Mr.  Eoosevelt's  administration  was  urged  by  the 
United  States  upon  the  Second  Conference  at  The 
Hague  in  1907,  and  which,  at  the  instance  of  the  United 
States,  was  provided  for  in  subsequent  treaties  between 
the  United  States  and  the  prii\cipal  European  powers, 
negotiated  under  Mr.  Knox  as  Secretary  of  State  in  Mr. 
Taft's  administration,  but  not  finally  consummated 
when  the  war  intervened. 

Here,  plainly,  there  is  agreement  in  substance,  and 
the  difficulties  are  formal. 


17 

The  technical  commission,  which  in  the  summer  of 
1920  drafted  the  plan  for  a  permanent  court  that  has 
been  adopted  by  the  League,  accompanied  the  plan  by  a 
unanimous  recommendation  as  follows: 

The  Advisory  Conunittee  of  Jurists,  assembled  at  The 
Hague  to  draft  a  plan  for  a  Permanent  Court  of  Interna- 
tional Justice, 

Convinced  that  the  security  of  States  and  the  well-being 
of  peoples  urgently  require  the  extension  of  the  empire  of 
law  and  the  development  of  all  international  agencies  for 
the  administration  of  justice, 

Recommends : 

I.  That  a  new  conference  of  the  nations  in  continuation 
of  the  first  two  conferences  at  The  Hague  be  held  as  soon  as 
practicable  for  the  following  purposes : 

1.  To  restate  the  established  rules  of  international  law, 
especially,  and  in  the  first  instance  in  the  fields  affected  by 
the  events  of  the  recent  war. 

2.  To  formulate  and  agree  upon  the  amendments  and  ad- 
ditions, if  any,  to  the  rules  of  international  law  shown  to  be 
necessary  or  useful  by  the  events  of  the  war  and  the  changes 
in  the  conditions  of  international  life  and  intercourse  which 
have  followed  the  war. 

3.  To  endeavor  to  reconcile  divergent  views  and  secure 
general  agreement  upon  the  rules  which  have  been  in  dis- 
pute heretofore. 

4.  To  consider  the  subjects  not  now  adequately  regulated 
by  international  law,  but  as  to  which  the  interests  of  inter- 
national justice  require  that  rules  of  law  shall  be  declared 
and  accepted. 

II.  That  the  Institute  of  International  Law,  the  American 
Institute  of  International  Law,  the  Union  Juridique  Inter- 
nationale, the  International  Law  Association,  and  the 
Iberian  Institute  of  Comparative  Law  be  invited  to  prepare 
with  such  conference  or  collaboration  inter  sese  as  they  may 
deem  useful,  projects  for  the  work  of  the  Conference  to  be 
submitted  beforehand  to  the  several  governments  and  laid 
before  the  Conference  for  its  consideration  and  such  action 
as  it  may  find  suitable. 

III.  That  the  Conference  be  named  Conference  for  the 
Advancement  of  International  Law. 


18 

IV.  That  this  conference  be  followed  by  further  successive 
conferences  at  stated  intervals  to  continue  the  work  left 
unfinished. 

Plainly,  these  recommendations  cannot  receive  effect 
now,  nor  until  the  present  emergencies  of  an  misettled 
war  have  been  disposed  of.  But  when  the  time  comes, 
they  will  point  the  way  to  the  performance  of  the  object 
of  the  League  "for  the  firm  establishment  of  the  under- 
standings of  international  law,"  and  the  identical  pur- 
pose of  the  people  of  the  United  States,  so  often  declared 
by  their  representatives. 

It  is  to  be  observed  that  these  two — the  establishment 
of  a  permanent  court  and  the  restoration  of  the  authority 
of  international  law — are  correlative  parts  of  the  same 
world  policy,  upon  the  substance  of  which  the  civilized 
nations  are  in  agreement. 

There  can  be  no  real  court  without  law  to  control  its 
judges,  and  there  can  be  no  effective  law  without  insti- 
tutions for  its  application  to  concrete  cases.  This  is  the 
traditional  policy  of  the  United  States — to  establish  and 
extend  the  law  declaring  the  rules  of  right  conduct  ac- 
cepted by  the  common  judgment  of  civilization  and  to 
substitute  in  international  controversies  upon  conflict- 
ing claims  of  right,  impartial  judgment  under  the  law 
in  the  place  of  war. 

The  existing  situation  presents  difficulties  and  em- 
barrassments in  arriving  at  a  common  understanding 
regarding  the  precise  modes  in  which  this  general  world 
policy  shall  receive  effect;  but  I,  for  one,  am  not  willing 
to  assume  that  the  patience  and  good  sense  of  the  di- 
plomacy of  the  world,  including  our  own  country,  will 
be  unequal  to  the  task  of  so  disposing  of  the  formal 
difficulties  as  to  achieve  the  great  object  upon  which  all 
are  agreed. 

It  is  further  to  be  observed  that  conference  upon 
matters  of  policy,  either  permanent  or  occasional,  on 
the  one  hand,  and  the  establishment  of  law  and  judicial 
disposal  of  questions  of  right,  on  the  other  hand,  are 
not  alternative  and  opposing  hiethods.  They  are 
mutually  supplemental  parts  of  one  and  the  same 
scheme  to  prevent  war.     Both  are  methods  of  bringing 


19 

the  public  opinion  of  the  world  to  bear  upon  the  settle- 
ment of  controversies.  Neither  covers  the  field  without 
the  other.  Never  before  has  there  been  such  evidence 
of  the  power  of  public  opinion  as  has  been  afforded  by 
the  vast  propaganda  through  which  the  contending 
nations  in  the  great  war  have  tried  their  cases  at  the  bar 
of  public  judgment  of  the  world,  and  have  sought  to 
commend  iheir  conduct  to  the  peoples  of  other  nations. 

No  Peace  by  Compulsion 

The  idea  that  any  formifla  can  be  devised  under  the 
working  of  which  the  world  can  be  made  peaceable  by 
compulsion  is  manifestly  in  course  of  abandonment. 

The  public  opinion  of  mankind  is  so  mighty  a  force 
that  it  is  competent  to  control  the  conduct  of  nations 
as  the  public  opinion  of  the  community  controls  the 
conduct  of  individuals. 

But  it  must  be  an  intelligent,  informed,  and  dis- 
ciplined opinion.  The  exit  of  autocracies  leaves  the 
direction  of  foreign  relations  under  the  ultimate  con- 
trol of  multitudinous,  ill-informed,  and  untrained 
democracies.  In  place  of  dynastic  ambitions,  the  dan- 
ger of  war  is  now  to  be  found  in  popular  misunder- 
standings and  resentments. 

How  are  these  vast  democracies  to  be  justly  informed 
as  to  the  rights  and  wrongs  of  controversies,  and  the 
fairness  of  policies?  It  seldom  happens  that  the  great 
multitude  of  citizens  can  argue  out  from  first  principles 
the  complicated  and  difficult  questions  of  right  and 
wrong  involved  in  international  relations.  It  seldom 
happens  that  the  subject  is  not  obscured  by  misinforma- 
tion and  misleading  suggestion,  and  by  appeals  to 
passion  rather  than  to  judgment.  The  only  mode  of 
meeting  this  great  and  vital  need,  dictated  by  reason 
and  approved  by  experience,  is  the  establishment  of  in- 
stitutions, through  which,  when  strife  is  not  flagrant, 
the  deliberate  and  unbiased  opinion  of  mankind  may 
declare  and  agree  upon  the  rules  of  conduct  which  we 
call  law,  by  which  in  times  of  excitement  judgment  may 
be  guided,  and  by  which  the  peoples  may  be  informed 
of  the  limits  of  their  rights  and  the  demands  of  their 
duties ;  and  by  the  establishment  of  institutions  through 


20 


which  disputed  facts  may  be  determined  and  false  ap- 
pearance and  misinformation  may  be  stripped  away 
and  the  truth  be  made  known  to  the  good  and  peaceful 
peoples  of  the  world  by  the  judgment  of  impartial  and 
respected  tribunals.  In  such  institutions  rests  the 
possibility  of  growth  of  development  for  civilization. 
Through  them  may  be  established  by  usage  the  habit 
of  respecting  law.  They  may  create  standards  of  con- 
duct under  which  the  thoughts  of  peoples  in  controversy 
will  turn  habitually  to  the  demonstration  of  the  justice 
of  their  position  by  proof  and  reason,  rather  than  by 
threats  of  violence,  so  that  the  time  will  come  when  a 
nation  will  know  that  it  is  discredited  by  the  refusal  to 
maintain  the  justness  of  its  cause  by  the  procedure  of 
justice. 

This  is  the  work  of  international  law,  applied  by  an 
international  court. 

The  process  will  be  slow,  but  all  advance  of  civiliza- 
tion is  slow.  Xot  what  ultimate  object  we  can  attain 
in  our  short  lives,  but  what  tendencies  toward  higher 
standards  of  conduct  in  the  world  we  can  aid  during  our 
generation  is  the  test  that  determines  our  duty  of 
service.  The  conditions  which  will  hinder  and  delay 
effective  action  for  the  re-establishment  of  law  are  many 
and  serious,  but  we  must  prepare.  When  the  time  for 
action  comes,  it  must  find  the  results  of  study,  discus- 
sion and  matured  thought  ready,  as  material  for  au- 
thoritative judgment  by  the  nations,  and,  meantime, 
the  voice  of  the  least  of  us  may  be  of  some  avail,  urging 
that  force  be  repressed  and  expediency  by  guided  by  the 
public  opinion  of  the  world  made  effective  by  declared 
and  accepted  rules  of  public  right  applied  by  competent 
and  impartial  internationar  tribunals. 


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